Edwards v. Morgan

Mr. Justice Trunkey delivered the opinion of the court October 2d 1882. The court rightly charged that the evidence discloses no fraud or collusion by Nagle and Edwards to defraud creditors of [335] Edwards, or any attempt on the part of Edwards to delay, defraud or hinder his creditors, and that under the testimony, either Edwards or Nagle had the right to convey the land in dispute to Elizabeth Edwards. Although the plaintiffs were allowed to prove fraud against the creditors in the judgment upon which the land was sold at sheriff’s sale, if they could, they failed, and the jury were not permitted to find the fact. It is true that an equitable title to land may be surrendered by parol, or that a parol contract for sale of land may be orally cancelled, but there was no evidence that Edwards surrendered such title to Nagle, or that the alleged contract was cancelled. Both testified that no contract for sale and purchase of the land was ever made between them, and nothing was proved respecting Edwards’ assent that the deed should be made to his wife. If a good title had been vested in Edwards, it was not divested by Nagle’s conveyance of the legal title to another person. The defendant’s second, third and fourth points, resting upon the assumption that Edwards had surrendered an equitable title and assented to the conveyance made by Nagle, were properly refused. Nor was there error in the instruction set out in the fifth assignment. The chief question is, whether there was sufficient evidence of a parol contract for the sale of land by Nagle to Edwards, and of the other requisites essential to the plaintiffs’ case, to submit to the jury. If not the sixth and tenth assignments must be sustained. P. D. Edwards’ title, if he had any, was vested in Charles Morgan and E. S. Morgan by the sheriff’s deed. They have precisely the right which he had at and before the time of the . sheriff’s sale. Nagle’s title was vested in Elizabeth Edwards by deed dated February 27th 1873. She is in possession. The plaintiffs seek to recover upon an alleged equitable title against the holder of the legal title. They stand in the place of a vendee under an oral contract, who is out of possession, and the defendant, in place of the vendor in possession. To succeed, they must show a case which, in equity, would entitle them to a decree for specific performance. Where a chancellor under the evidence if true would refuse to decree the specific performance of the alleged contract, the court should instruct the jury that the plaintiff .cannot recover : Taylor v. Henderson, 2 Wr. 60. The claim is a purely equitable one. In a court of equity where the contract alleged in the bill is denied by a sworn answer the complainant is compelled to maintain it by two witnesses, or by what would be equivalent thereto. As long as equitable ejectments may be maintained, and equitable defences set up against legal titles in ejectment, the same rule and measure of justice must * be applied, whether the proceeding be at law or in equity: Sower v. Weaver, 28 P. F. S. 443. [336] Where a parol contract is precise as to the terms and subject matter, and the vendee has taken possession in pursuance of it and made valuable improvements with the assent of the vendor, it is not within the statute of frauds: McGibbeny v. Burmaster, 3 P. F. S. 332. Its terms must be shown by full, complete satisfactory and indubitable proof. The evidence must define the boundaries, indicate the quantity of the land, fix the amount of the consideration, establish that possession was taken in pursuance of the contract, and show such performance or part performance by the vendee as would make rescission inequitable and unjust: Hart v. Carroll, 4 Nor. 508. If the alleged contract be of recent date, these rules will be more rigidly applied than if long time had elapsed and the vendee had been in continuous adverse possession for many years. When an attempt is made to set up a parol contract of sale against a father, either by his son or one claiming under the son, the evidence of the contract must be direct, positive, express and unambiguous. “ The contracting parties must be brought together face to face. The witnesses must have heard the bargain when it was made, or must have heard the parties repeat it in each other’s presence. A contract is not to be inferred from the declarations of one of the parties: ” Ackerman v. Fisher, 7 P. F. S. 457. The burden is no lighter when the alleged contract is set up by a son-in-law, or one claiming under him. In such case it is likely to be an attempt to take from the daughter what the father intended for her. The same rules are applicable when the claim is made by a son, should be as strictly applied to the claim of a son-in-law. What is the evidence relied on to establish a contract? Nothing but declarations by one party in the other’s absence. No witness heard the parties make a bargain or acknowledge to each other that there was one. Edwards apparently took possession in the spring of 1870, and proceeded to build a store and a dwelling-house. His possession and improvements were consistent with either a sale of the lot to himself, or a gift of the lot to his wife. Soon after he began to make improvements, Benscoter heard Nagle and another man talking of the lot. The stranger said, “I understand that you sold P. D. a piece of land.” Nagle replied: “ Why, well, yes, partly; I didn’t get much for it.” Stranger: “I understand that you got $75 for it.” Nagle: “Yes, but that ain’t much; I wouldn’t have sold it to anybody else'for that.” Another witness, Weitzell, testifies that Nagle said to him: “When I sold that land to P. D. Edwards, he agreed to dig this cellar, wall it up and move the house and make the cellar as good as where the house now stands.” No other witness heard any declaration as to the terms of the contract. These and others often heard [337] Nagle say lie liad sold the lot to Edwards, and Edwards told a number that he had bought it and paid for it. When Edwards was purchasing lumber he once told the lumber dealer that he had bought the land and paid for it, and had the papers to show for it, partly pulling some papers out of his pocket; but ho showed no deed or written contract for the land. Only two witnesses heard any declaration respecting the terms of the contract, and they did not hear the same thing. Neither length of time nor other circumstance exists to relievo the plaintiffs from making the strict proof required by the general rules to take the contract out of the operation of the statute of frauds. Nagle and Edwards both testify that they never made a contract for sale and purchase of the land. At least their testimony is equivalent to the sworn answer of the defendant in an equity suit, denying the contract alleged in the bill. Taking all the testimony as competent and true, a chancellor could not declare that the terms of a contract are shown by full, satisfactory and indubitable proof, by the testimony of two witnesses, or the equivalent of two, and he would refuse a decree for specific performance. But the declarations of Edwards, made in absence of Nagle, clearly were incompetent proof on the part of the plaintiffs, to establish a contract, or payment of the consideration. Before the sheriff’s sale, in a suit by Edwards for the land, he could have shown the extent of his claim and how he claimed, while in possession; but not his own declarations to strangers. lie could not tell strangers that he had a contract with Nagle and what it was, and afterwards prove by them what he had said for the purpose of defeating Nagle’s title. Contracts are not made or proved in that way. Nor can the plaintiffs holding under him, prove such declarations where, as here, there is no evidence of a conspiracy or fraudulent collusion between Nagle and Edwards to cover up or give false color to the title. The defendant offered to prove by the wife of Frederick Nagle that long before the deed was made to their daughter, Elizabeth Edwards, the property had been given to her as an advancement, which offer was rejected. Had the plaintiffs’ testimony been sufficient to submit, we think this offer would have been admissible. The deed was “ in consideration of love and affection and as an advancement from his estate to the amount, of $600.” It was consistent with a prior parol gift of the land, and if there was such gift, it would be pertinent to consider the fact, especially with reference to the possession of P. D Edwards, husband of Elizabeth Edwards. Judgment reversed.